Dr Claire Hogg

In England and Wales, defendants whose involuntary state was due to voluntary intoxication cannot be exculpated on grounds of automatism. But why is this the case?  If the concept of legal automatism is founded on some version of the voluntary act requirement, then ceteris paribus the absence of voluntariness in these cases ought to preclude culpability.  The question, then, is: which things are unequal in voluntary intoxication cases? 

The typical answer is prior fault.  Since culpability cannot attach directly to involuntary action, it must derive from the operation of prior fault principles.  Taking this framework as a given, then, the question concerning us is: can chemical addiction mitigate that “prior fault” culpability in cases of voluntary intoxication and, if so, how and under what conditions?

The significance of this question is clear: if addiction is capable in certain cases of negating culpability for (e.g.) taking a drink, then automatism cannot always be justly denied on a prior fault basis in voluntary intoxication cases.  Consequently, a blanket rule against the application of automatism rules in voluntary intoxication cases should be rejected. 

Over the course of this paper, I consider different models by which the relevance of addiction to prior fault culpability can be analysed and understood, including control/free will, theories of sufficient concern, and theories of reasonable or normative expectations.

The M’Naghten Rules of insanity play a dual role in the criminal law, underpinned by dual rationales. One of these roles is plainly exculpatory; they provide a complete defence to defendants whose non-culpability proceeds from mental disorder alone. The other role, however, may be better characterised by its exclusionary or diversionary effect. We identify this where the insanity ‘defence’ is applied despite the defendant satisfying alternative grounds for exculpation, diverting him or her from an unqualified acquittal to the disposal options available via the special verdict of ‘not guilty by reason of insanity’. The rationale for this second role is therefore less a backward-looking assessment of the defendant’s non-culpability, and rather more about a forward-looking assessment of their dangerousness and/or medical need.

Tension between these contrasting roles has led to considerable judicial unclarity regarding the interpretation and application of the M’Naghten Rules, particularly where insanity is applied in its exclusionary role. The critique of this unclarity has become a prominent theme of Professor Sullivan’s research. In this chapter, we take such critique a step further, arguing that the tensions he has helped identify between the dual roles of insanity can only be fully resolved where the second exclusionary role is eliminated altogether. This is a fundamental step which Sullivan and others have resisted, for reasons we will engage; but it is a step we see as essential to bring clarity and fairness to the law.

In her newest book, Alex Sharpe makes a persuasive case against the bringing of sexual offence prosecutions on the basis of “gender identity fraud”. Adopting a perspective in which queer and gender non-conforming identities are acknowledged and centred rather than doubted and dissected, Sharpe aims to destabilise the conceptual foundations upon which such prosecutions depend. In this review I place Sharpe’s contribution in its legal context, and offer an overview of her argument along with some reservations.

This article takes an abolitionist position towards insane automatism (or ‘the insanity defence’). With particular reference to Arlie Loughnan’s concept of ‘manifest madness’, it argues that mentally ill defendants are poorly served not only by the insanity defence as currently formulated, but by any defence which focuses on their status as ‘mentally ill’ rather than the specific excusatory elements of that illness. It contends, however, that advocates for abolition should not assume that existing criminal defences are currently primed to account for those elements. What is required is a thoroughgoing reform of all criminal defences, with mentally ill and/or disordered defendants in mind, to which abolition of the insanity defence must be secondary.